Citation Nr: 0001359
Decision Date: 01/14/00 Archive Date: 01/27/00
DOCKET NO. 94-41 825 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for impotence.
2. Entitlement to service connection for disability
manifested by elevated glucose and cholesterol levels.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
G. Wm. Thompson, Counsel
INTRODUCTION
The veteran, after completing more than 20 years of active
military service, retired in June 1991.
This case was previously before the Board in May 1996. At
that time two increased rating issues were denied, and
additional development was requested for the issues shown
above. The case has been returned to the Board for further
appellate consideration. The Board notes that the veteran's
erectile problem was originally characterized as a claim for
service connection for impotence. Although the RO
characterized the issue as loss of erectile power in the
April 1999 supplement statement of the case (SSOC), for
reasons set forth below, the Board will address the issue of
service connection for impotence.
In the course of this appeal the veteran moved from Texas to
Virginia. In April 1993 he was informed by letter that a
Texas Veterans Commission (TVC) representative was not
located in the current (Virginia) RO, and that he must either
revoke TVC and appoint a representative recognized by the
Virginia RO, or his appeal would be delayed while his claims
file was sent to Texas for review. The veteran did not
respond, and the TVC continues to be his representative in
this appeal.
By rating action in April 1999, the service-connected
hypertension was shown to include erectile dysfunction, and
the 20 percent evaluation was continued. The veteran was
informed of this determination later in April 1999, and there
is no notice of disagreement (NOD) in file to the April 1999
decision. 38 C.F.R. §§ 20.200, 20.201 (1999).
The issue of service connection for disability manifested by
elevated glucose and cholesterol levels is the subject of a
remand contained herein.
FINDINGS OF FACT
1. There is no competent medical evidence of a clinical
diagnosis of impotence; he has some loss of erectile power
associated with hypertension medication.
2. The service-connected hypertension, with erectile
dysfunction, is rated 20 percent.
CONCLUSION OF LAW
The appellant's claim for service connection for impotence is
not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp.
1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Impotence
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well grounded. Under the law, it is the obligation
of the person applying for benefits to come forward with a
well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded
claim is "[a] plausible claim, one which is meritorious on
its own or capable of substantiation. Such a claim need not
be conclusive but only possible to satisfy the initial burden
of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed.
Cir. 1997). Mere allegations in support of a claim that a
disorder should be service-connected are not sufficient; the
veteran must submit evidence in support of the claim that
would "justify a belief by a fair and impartial individual
that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak
v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and
quantity of the evidence required to meet this statutory
burden depends upon the issue presented by the claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
The United States Court of Appeals for Veterans Claims
(Court) has held that, in general, a claim for service
connection is well grounded when three elements are satisfied
with competent evidence. Caluza v. Brown, 7 Vet. App. 498
(1995). First, there must be competent medical evidence of a
current disability (a medical diagnosis). Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski,
3 Vet. App. 223, 225 (1992). Second, there must be evidence
of an occurrence or aggravation of a disease or injury
incurred in service (lay or medical evidence). Cartwright v.
Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet.
App. 465 (1994). Third, there must be a nexus between the
in-service injury or disease and the current disability
(medical evidence or the legal presumption that certain
disabilities manifest within certain periods are related to
service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v.
Brown, 7 Vet. App. 359 (1995).
The Court has further held that the second and third elements
of a well-grounded claim for service connection can also be
satisfied under 38 C.F.R. § 3.303(b) (1997) by (a) evidence
that a condition was "noted" during service or an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and post-service symptomatology. See
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-
97 (1997). Alternatively, service connection may be
established under 38 C.F.R. § 3.303(b) by evidence of (i) the
existence of a chronic disease in service or during an
applicable presumption period and (ii) present manifestations
of the same chronic disease. Ibid.
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical
causation or diagnosis cannot constitute evidence to render a
claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991);
if no cognizable evidence is submitted to support a claim,
the claim cannot be well grounded. Id.
The Court has held that "[i]n the absence of competent
medical evidence of a current disability and a causal link to
service or evidence of chronicity or continuity of
symptomatology, a claim is not well grounded." Chelte v.
Brown, 10 Vet. App. 268 (1997). In Brammer v. Derwinski, 3
Vet. App. 223 (1992), the Court noted that Congress
specifically limited entitlement for service-connected
disease or injury to cases where such incidents had resulted
in a disability. In Rabideau v. Derwinski, 2 Vet. App. 141
(1992), the Court held that the failure to demonstrate that a
disability is currently manifested constitutes failure to
present a plausible or well-grounded claim.
Factual Background
Service medical records show that the veteran was treated for
hypertension for many years in service, with medication. In
the 1980's he was seen for complaints of impotence, and in
December 1988 it was noted that he had impotence for 8 years,
of unknown etiology.
The veteran's original claim for disability benefits in
August 1991 noted impotence from 1982 to the present.
VA examination in September 1991 did not include any special
evaluation or testing for impotence.
A rating action in October 1991 granted service connection
for hypertension, rated 20 percent, code 7101.
Clinic records from a service medical facility, variously
dated in 1991 and 1992, show a laboratory study for
testosterone, with a finding of 4.6 ng/ml (male normal range
2.7-10.7 ng/ml). In January 1992 it was noted that the
veteran had "impotence" secondary to BP (blood pressure)
medications. Also in January 1992 there were assessments of
erectile dysfunction, poorly sustained erection. In March
1992, it was noted that he continued with erectile problem.
The assessment was organic "impotence." In April 1992 he
was seen for further evaluation of "impotence." He was
seen by a urologist and prolactin and testosterone were
within normal limits. It was recorded that was able to get
nocturnal erections but was unable to sustain erection for
more than 3 to 5 minutes for intercourse. He was positive
for nocturnal emissions. The assessment was questionable
impotence, psychogenic versus organic. Rigiscan was
performed in April 1992, and in May 1992 it was recorded that
the rigiscan was normal, and the veteran was able to have
intercourse, however his penis was not as rigid. There was
retirement stress in his life. The assessment was
questionable erectile dysfunction, may be part of normal
aging compounded by social stress.
The veteran in his December 1992 substantive appeal pointed
out that his service medical records showed that blood
pressure medication caused his "impotence" problem, that
the impotence is a side effect of his high blood pressure
medication, and that he did not consider his age (44) to be
the main cause of his impotence.
During a May 1993 VA examination it was recorded that the
veteran reported that his erections were not quite as good as
they were when he was a younger man; however he still had
intercourse at regular intervals with satisfactory orgasms.
Objective examination was without pertinent findings. The
diagnosis was no genitourinary disease.
Per the May 1996 remand, the veteran was provided
genitourinary examination by the VA in April 1998. It was
noted that the veteran reported having loss of sexual
function when he started on medication for his hypertension.
Since changing to Vasotec and Esidrix, there had been slight
improvement. The diagnosis was "impotence" due to
hypertension medication. Urology evaluation, also in April
1998, showed no endocrine, neurological or psychological
abnormality noted. He was noted to have hypertensive
cardiovascular disease. It was recorded that vaginal
penetration with ejaculation was possible but he had
inadequate rigidity. Physical examination was negative. The
diagnosis was erectile dysfunction due to hypertensive
cardiovascular disease.
A rating action in April 1999 showed the veteran's service-
connected hypertension to be with erectile dysfunction, and
the 20 percent evaluation was continued, Code 7101.
Analysis
The veteran's claim for disability manifested by some loss of
erectile function is complicated by the use of both the terms
impotence and erectile dysfunction in the record. For the
sake of clarity, the Board will use the STEDMAN'S MEDICAL
DICTIONARY, 26th Edition, definition of impotence: inability
of the male to achieve and/or maintain penile erection and
thus engage in copulation; a manifestation of neurological,
vascular, or psychological dysfunction. The term erectile
dysfunction on the other hand will be used to connote some
loss of erectile function, without complete inability to
achieve or maintain penile erection and engage in copulation.
In view of these definitional distinctions, the Board finds
that the grant of service connection for erectile dysfunction
in April 1999 did not completely dispose of the veteran's
claim, as it arguably still denied a claim for service
connection for impotence. Thus, the remaining question
before the Board is whether the veteran has a disability due
to impotence that is causally related to injury or disease of
service origins.
Simply stated, the veteran is not impotent, as he is able to
achieve an erection and copulate. Although the term
impotence has been used at times, both during service and as
recently as the April 1998 examination it has been clinically
reported that he was able to achieve vaginal penetration and
ejaculation. Thus, under the definition set forth above, the
veteran is not "impotent." This is not to dispute that the
veteran does have disability due to some loss of rigidity,
and this dysfunction has been linked by competent medical
evidence to medication he uses for his service connected
hypertension. This erectile dysfunction due to hypertensive
cardiovascular disease properly has been service connected.
It has never been shown clinically that the veteran is, in
the strict sense of the word, impotent. In view of the
specific facts of this case, the Board would rule first that
there no adequate clinical diagnosis of impotence in the
record. Therefore, since there is no adequate diagnosis of a
current disability due to impotence, the first element of a
well-grounded claim has not been satisfied, as there is no
competent medical evidence of current disability due to
impotence. See Rabideau.
In evaluating the veteran's claim the Board has reviewed
38 C.F.R. § 3.350, special monthly compensation ratings, and
specifically loss of use of a creative organ. Neither
erectile dysfunction nor impotence is covered under 38 C.F.R.
§ 3.350.
Where the Board addresses in a decision a question that was
not addressed by the RO, it must consider whether the
claimant has been given adequate notice of the need to submit
evidence or argument and to address that question at a
hearing, and, if not, whether the claimant has been
prejudiced thereby. In this case, the RO resolved this issue
on the merits whereas the Board finds that the appellant did
not meet his initial burden of submitting a well-grounded
claim. Since the appellant did not meet his initial burden,
however, his claim is inherently implausible such that any
error by the RO is harmless and he is not prejudiced. Bernard
v. Brown, 4 Vet. App. 384, 394 (1993); Meyer v. Brown, 9 Vet.
App. 425 (1996).
In the alternative, even if the Board assumed that the use of
the term impotence in the record during service and post
service is sufficient to establish a well-grounded claim, on
the merits the claim would be denied. The Board finds that
the most recent clinical evidence is overwhelming that the
veteran has erectile dysfunction, not actual impotence of
service origins.
ORDER
Service connection for impotence is denied.
REMAND
Service medical records show that in December 1979 the
veteran underwent evaluation after an abnormal glucose
tolerance test (GTT). It was concluded that the mildly
abnormal GTT did not qualify for diabetes mellitus either by
US Public Service criteria or Fajans and Conn's criteria. On
annual examination in November 1980, the cholesterol level
was elevated. The veteran's glucose level was elevated,
based on the published limits, on testing in July 1988 but
within normal limits in October 1988. Testing in May 1990
showed elevated cholesterol and normal glucose levels.
Testing in May and June 1990 showed glucose to be within the
limits of normal. The veteran continued to have elevated
cholesterol for the remainder of his time in service.
Test results associated with VA examination in September 1991
showed glucose and cholesterol to be within the published
limits of normal. Outpatient clinic records, associated with
treatment at a service medical facility, from August 1991 to
May 1992, show diagnosis of and treatment for hyperlipidemia.
The status of any hyperlipidemia was not clear to the Board,
nor was it clear whether there is any relationship between
the elevated cholesterol levels and occasional elevated
glucose levels, and the hyperlipidemia for which the veteran
had been treated post-service. Consequently, the directed in
the May 1996 remand that the veteran's claims folder in it's
entirety be reviewed by an appropriate specialist in order to
provide a medical opinion concerning hyperlipidemia,
hypercholesterolemia and elevated glucose levels. The Board
can find no record that this was accomplished. This failure
to fully comply with the Board's instructions is
unacceptable, as the Court recently held in Stegall v. West,
11 Vet. App. 268 (1998) that:
...a remand by this Court or by the Board confers on
the veteran or other claimant, as a matter of law,
the right to compliance with the remand orders. We
hold further that a remand by this court or the
Board imposes upon the Secretary of [VA] a con
concomitant duty to ensure compliance with the
terms of the remand....Finally, we hold also that
where, as here, the remand orders of the Board or
this court are not complied with, the Board itself
errs in failing to ensure compliance....The Court
takes this opportunity to remind the Secretary that
he holdings of this decision are precedent to be
followed in all cases presently in remand status.
This case is remanded for actions as follows:
1. The veteran should be permitted to
submit or identify any other evidence in
support of his claim. The appellant has
the right to submit additional evidence
and argument on the matter or matters the
Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
2. The RO should contact the veteran to
determine if he would like to appoint a
representative, other that the Texas
Veterans Commission, now that he is
residing in Virginia.
3. The RO should have an appropriate
specialist review the claims folder in
it's entirely in order and a copy of this
remand in order to provide a medical
opinion as to whether the veteran does in
fact have hyperlipidemia, and if so,
whether it is a symptom of some other
underlying disorder or whether it is
itself a disability. If hyperlipidemia
is a separate a disorder, the Board
requests and opinion as whether there is
any relationship between the
hypercholesterolemia and/or elevated
glucose levels in service and the
reported post-service hyperlipidemia, and
the date of onset of hyperlipidemia. A
complete rationale for any opinion
expressed must be provided. If an
opinion can not be provided without
resort to speculation, the examiner
should so note. If additional testing or
examination is required, it should be
performed.
If the benefit sought on appeal is not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Richard B. Frank
Member, Board of Veterans' Appeals